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2111594 (Refugee) [2024] AATA 3260 (9 May 2024)

Last Updated: 13 September 2024

2111594 (Refugee) [2024] AATA 3260 (9 May 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 2111594

COUNTRY OF REFERENCE: Malaysia

MEMBER: Fraser Robertson

DATE: 9 May 2024

PLACE OF DECISION: Perth

DECISION: The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 09 May 2024 at 9:39am

CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of particular social group – homosexual woman – non-sexual relationship before, during and after marriage, birth of child and divorce – reported to ministry for Islamic development and house broken into – vague, evasive and inconsistent evidence about relationship and marriage – no contact while applicant in Australia – currently living with husband, who arrived separately – non-practicing Muslim – member of family unit child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES
ASB17 v MHA [2019] FCAFC 38; (2019) 268 FCR 271
AVQ15 v MIBP [2018] FCAFC 133; 361 ALR 227
CQG15 v MIBP [2016] FCAFC 146; 253 FCR 496
DQU16 v MHA [ 2021] HCA 10 ; 273 CLR 1
EIG17 v MICMA [2023] FedCFamC2G 804
ESD17 v MIBP [2018] FCA 1716
Fox v Percy [2003] HCA 22; 214 CLR 118
MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505
MIEA v Guo [1997] HCA 22; 1997 CLR 559
Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437
Selvadurai v MIEA [1994] FCA 301; 34 ALR 347
SZLVZ v MIAC [2008] FCA 1816

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the 'Act').
2. For these reasons, the decision under review should be affirmed.

BACKGROUND

3. The first-named applicant ('Mother') is a [Age]-year-old female from Malaysia who arrived in Australia on 29 June 2018 and applied for a protection visa on 11 September 2018.
4. The second-named applicant is the Mother's [Age]-year-old daughter ('Daughter'). The Daughter has not made any claims in her own right but rather seeks protection on the basis that she is a member of the same family unit as the Mother.
5. The Mother attended an interview with the Department on 27 July 2021.^[1]
6. The delegate refused to grant the applicants protection visas on 23 August 2021. In refusing the application, the delegate did not accept that the Mother was a credible witness and rejected her claims to fear harm based on her being in a relationship with a woman.

Review application

7. The applicants have applied to the Tribunal for review of the delegate’s decision. The applicants provided a copy of the delegate's decision to the Tribunal. The applicants were not represented for the review application.
8. The applicants were invited to a hearing before the Tribunal to give evidence and present arguments. The Mother responded to that invitation on behalf of both applicants and requested that the Tribunal take evidence from her sister.
9. The Mother appeared before the Tribunal on 7 May 2025. The Daughter did not, which is understandable given her age. The Tribunal hearing was conducted with the assistance of an interpreter in Malay and English. The Mother indicated at the commencement of the hearing that she would only use the interpreter when necessary, and she did use the interpreter during the hearing when she felt it necessary, both to understand questions and to assist her in responding as needed. I am satisfied that the hearing was conducted fairly. The evidence material to this decision is referred to below.

RELEVANT LAW

10. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person who holds a protection visa of the same class.

Refugee criterion

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the decision‑maker is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.^[2] A person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.^[3] Persecution must involve serious harm^[4] and systematic and discriminatory conduct.^[5]
7. A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.^[6] A "real chance" is a prospect that is not "remote" or "far‑fetched", it does not require a likelihood of persecution on the balance of probabilities.^[7] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.

Complementary protection criterion

9. If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.^[8] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.^[9] Circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.

Credibility

14. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The task of fact-finding may involve an assessment of an applicant’s credibility. Assessment of credibility is an inherently difficult task.^[10] The assessment of the credibility and reliability of evidence given by asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.^[11] Caution is required when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution.^[12] Inconsistencies in an applicant’s account may or may not be significant.^[13] I should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims.^[14]

Mandatory considerations

16. As directed^[15], I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the DFAT Country Information Report^[16].

ANALYSIS, FINDINGS AND REASONS

16. The issue in this application is whether the applicants, or either of them, meets the refugee criterion for protection contained in s 36(2)(a), or, alternatively, the complementary protection criterion contained in s 36(2)(aa) of the Act.
19. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.^[17] The Tribunal does not have any responsibility or obligation to specify or establish, or assist an applicant in specifying or establishing, their claims. When assessing the claims made, there is no requirement to uncritically accept any or all of the allegations made.^[18] Rebutting evidence is not required before finding that a particular factual assertion is not made out.^[19]

Country of nationality

18. The applicants claim to be Malaysian nationals. They travelled to Australia on passports that appear to have been regularly issued by that country. I am satisfied that Malaysia is the applicants' country of nationality and the receiving country.

Claims for protection

Protection visa application

21. The applicants' protection visa application is dated 11 September 2018. She listed her previous residential address between [Year] and when she departed Malaysia as an address located at [Town 1] in Sabah.^[20] No other addresses in Malaysia were provided. The Mother listed her only residential address in Australia as a location in [Town 2]. Her protection visa application claimed that she commenced residing there when she arrived in Australia.^[21]
22. The Mother claims that she left Malaysia:^[22]

    Because i have been wanted by national government organisation that operated under government. I have been chased by them for the past three months and i got lucky not bump with them in that period of time. A week before i came to Australia, my house have been broke in by some religion extrimist that fight against Gay. That is when I decided to move to Australia after thinking about my future faith. [errors as in original]

24. In response to the question about whether the Mother ever experienced harm in Malaysia, she answered "No".^[23] The Mother further claimed that she tried to move to her own village to avoid harm but her family asked to leave because they were concerned that the house would be targeted because of her, so the Mother moved to Kuala Lumpur as there was a "Gay Community House" there. The Mother then claimed she was asked to leave that place because it had been "exposed".^[24]
22. The Mother claimed that she feared harm if she were returned to Malaysia and indicated that she would be harmed because of:

    "My status is just a gay but i will treated as I am the enemy of the country. Sooner or later, i will be expell from the country and that is no point for me to get back there." [errors as in original]

25. The Mother claimed she could not obtain protection from the authorities in Malaysia, adding that the "main authorities itself have put me in arrested list". The Mother claimed that she would be unable to relocate and that the authorities have widened operations against gay people and almost every state was participating in those operations.^[25]

Protection visa interview

26. The Mother attended an interview with the Department on 27 July 2021. An interpreter assisted her. The delegate summarises the interview in her decision.^[26] Having listened to the interview myself, I am satisfied that the summary contained in the delegate's decision is a fair summary of the content of the interview. As indicated by the delegate's summary, at the interview, the Mother's evidence included:

(a) she met "[Ms A]" when she was 14 years old. That turned into a "relationship" around 2007. Whilst they never had a sexual relationship, they would hug, kiss and sleep next to each other.

(b) she found out her husband was cheating. When she found out, she went to [Ms A]'s house and believed that [Ms A]'s family saw them hugging and kissing. They reported the Mother to the Ministry for Islamic Development ('JAKIM'). She believes this was [Ms A]'s family because they only reported the Mother, not [Ms A]. This resulted in her family finding out about the relationship "towards the end of 2017". Her family did not support her relationship with [Ms A] and wanted her to return to the "right path";

(c) the Mother has photos of her and [Ms A] together, however her phone was broken so she could not provide them;

(d) [Ms A] remained in Malaysia, had never been married, had no children, and remained loyal to their relationship. However, the Mother has had no contact with [Ms A] since she arrived in Australia, believing that her family may be preventing her from contacting her;

(e) the relationship between [Ms A] and the Mother has continued since she came to Australia. [Ms A] and the Mother made a "vow to stay loyal to each other";

(f) Around February 2018, the home of the Mother's family was broken into. Her home was broken into in February 2018. These break-ins were a few weeks apart. Nobody made any reports because they believed that JAKIM was behind the break-ins;

(g) the Mother could not remember the location of the "Gay Community House" in Kuala Lumpur because she had not been there for long. When the Mother was in Kuala Lumpur, her daughter remained with her Mother;

(h) the Mother believes she will be sent to a Rehabilitation Centre or imprisoned if she is returned to Malaysia. She also believes her daughter may be taken from her; and

(i) the Mother would return to her relationship with [Ms A] if she returned to Malaysia, and, if [Ms A] had moved on, the Mother would look for another relationship with a female.

Pre-hearing statement

25. On 2 May 2024, the Mother provided documents to the Tribunal. Those were a written statement, identification documents for both applicants, income statements for the Mother from her Australian employment, and an offer of employment from [Employer].
26. The written statement was entitled "Statement to express the relevant details of my AAT Hearing". In that statement, the Mother claimed she was 14 years old when she first got to know [Ms A], and their relationship was "going great" until family members discovered it. She claims that it "went on and off" due to the objections we faced, and "we officially broke off in 2014 as [her] family forced [her] to get married."
27. The Mother continues to say that she stayed in touch with [Ms A], and they still had feelings for each other. She claimed she could not continue with her husband even though they had a child together. She wanted a divorce, and he agreed. They were divorced on [Date] when the Daughter was 2 months old.
28. The Mother claims that she began her relationship with [Ms A] in 2018 and her mother found out and notified her family about what had occurred. The Mother claims "they reported it" to JAKIM and "we were going to get prosecuted".
29. The Mother states:

    "The LGBTQ+ community has faced discrimination and persecution for years, and the threat of being prosecuted for simply being who they are is a daunting reality. This fear is often rooted in the lack of legal protections and acceptance for LGBTQ+ individuals in Malaysia, making it all the more terrifying for those who identify with this community".

30. The Mother refers to the need to protect herself and her daughter from "potential harm from Muslim extremists who may have negative views towards my relationship". The Mother qualifies that statement by suggesting that "not all Muslims are extremists and that Islam is a diverse religion with many different beliefs and practices".
31. The Mother states that she took protective measures while in Malaysia by being aware of her surroundings and any potential threats. She added that this meant being cautious "when in public spaces" and "avoiding areas where there may be a higher risk of encountering individuals with extremist views.”
32. The Mother states that "we try to deny everything but due to the constant protest of the Muslim community where I was living, extremists came to the house to threatened and destroy our household. JAKIM eventually came and threatened to prosecute us based on the Syariah Law".
33. The Mother claims that:

    At a later stage, my husband came to support as initially he couldn't accept my relationship and sexual ordinance. We officially got back together as a family because of our daughter. We hope that AAT can review and understand that in my home country we don't have choices that we can make in terms of who we get to love and who we get to become and especially with our religion, there are so many restrictions and the decisions that we make, we may face public and government persecution

Evidence at hearing

34. The Mother attended a hearing before the Tribunal on 7 May 2024.
35. Her evidence was that she has [sisters] and one brother in Malaysia. They all live in Sabah. The Mother's evidence was that she finished school after year 11, after which she helped her mother with a small business.
36. The mother's evidence was that she first met her husband about a week before they got married, on [Date]. At the time of her marriage, she was living at home with her family. After she got married, she moved to another house with her husband, which they rented for about one and a half years.
37. The Mother claims that she then moved back in with her family because she got divorced. She claimed that she got divorced on [Date] and had a copy of the divorce order. She could not explain why a copy of the divorce order had not yet been provided to the Tribunal. Subsequently, on 8 May 2024, the Mother provided a copy of an un-translated document that appears to be a divorce order from 2017.^[27]
38. When asked why the mother got divorced, she claimed it was because she told the truth to her husband about who she is. She claims she told him she could not love him because she is still in love with [Ms A] and apologised. She claims that her husband was angry but accepted her position. She did not indicate any other reason for the divorce, and when asked what made her decide to tell her husband, she claimed that after her daughter was born, she looked at her daughter and remembered [Ms A]. The Mother's evidence was that she did not know where her husband went following their divorce.
39. I sought to explore the Mother's relationship with [Ms A] during the hearing. The Mother's evidence was that they were in the same class at a religious hostel. The mother claimed that they were both bullied, and they started getting close in 2007. The Mother claimed that a new principal came to the school who was very strict and preferred students who he perceived as beautiful. The Mother claimed that he would punish anyone “who looked bad in his eyes” and claimed that she and [Ms A] both had pimples, so he targeted them.
40. I sought to understand from the Mother how the relationship between her and [Ms A] developed from a friendship between two children attending the same school to something more. The Mother's evidence in response was vague and evasive. She referred to them spending time together and the principal coming in and saying bad things about them.
41. When I asked when the Mother first realised she was attracted to [Ms A], she claimed it was because [Ms A] hugged her. She claimed that [Ms A] was the first person to hug her and that even her own mother had not hugged her. I asked whether her sisters, including her older sister, had ever hugged her. The mother's evidence was that she did not remember anything about her older sister because they did not grow up together. However, when pressed further, the Mother indicated that her older sister went to the same school as she and [Ms A] and was only two years older than her, but they did not see each other when the Mother was sent to the hostel.
42. The Mother claimed that her sister was sent to the Hostel, but ran away to her grandmother's house, about 20-30 kilometres from where her mother lived.
43. When asked when she realised that her feelings for [Ms A] were different, the Mother repeated it was when [Ms A] hugged her for the first time. She said that she did not know how to describe it, but that it felt very wonderful and she felt very happy. She was 14 years old at the time. She claims that they would sleep together and shower together. I endeavoured to explore with the Mother how the relationship between her and [Ms A] progressed from this point. That proved to be a difficult task. The evidence of the Mother was vague and generalised, and it appeared very superficial and not to be a product of genuine recollection.
44. One example was that the Mother gave evidence that they would "pour" out their feelings to each other. When I asked for some examples of what was said, the Mother's response was again quite vague, claiming that the things said included "don't worry," "I am here," and "whatever happens in the hostel, we have each other."
45. The Mother's evidence was that she left the hostel in 2010. Following this, the Mother helped her mother with her own business. The Mother claimed that [Ms A] went to "the big city". Following questions to clarify this evidence, the Mother explained that the reference to the big city was a reference to Kota Kinabalu. The Mother claimed that Kota Kinabalu was 90 to 95 km from where she lived.
46. The Mother claimed that the next time she saw [Ms A] was in March 2011 when they got their exam results. She claimed that they spent time together, went to a beach in Kota Kinabalu, went shopping together, and stayed at Kota Kinabalu for three days. The Mother claimed that they spent time on the beach and talked. The Mother also claimed that they poured out their feelings again. The Mother did not claim that there had been any physical intimacy between them, other than hugging.
47. I again sought to explore with the Mother what [Ms A] said to her. The Mother responded that [Ms A] said she missed the hugs, missed feeling the strength and missed showering together. She claimed that [Ms A] said that her life in the big city was different from when they were together in the hostel. She repeated her evidence that they spent hours catching up, telling stories and hugging each other, and they both missed that.
48. The Mother claimed that the next time she saw [Ms A] was in 2012 when she met her for her birthday. When asked what they did on that occasion, the mother only claimed that they were kissing together. I asked the Mother about her relationship with [Ms A] after 2012, and she avoided answering the question. I then asked the Mother when she last saw [Ms A]. Her response was in 2014, before she married, and then in 2018. She recounted that in 2014, she went and saw [Ms A] and told me that she needed to end their relationship because her mum had asked her to get married, and there was gossip that the Mother was interested in, or liked, girls. The Mother told [Ms A] that she had to listen to her mother because her mother was upset and embarrassed. She claims that she told Mimi everything so that she would understand and that Mimi was crying non-stop.
49. The Mother claimed that she next saw [Ms A] in 2018, and they started their relationship again. She claims she went looking for [Ms A] in Kota Kinabalu, met her, and "poured out all my feelings.” The Mother said that she did not arrange to meet [Ms A] but rather just went to her home in Kota Kinabalu and found [Ms A] there.
50. The Mother claims that [Ms A]'s mother then found out about the relationship and informed the Mother's mother. The Mother also claimed that [Ms A]'s mother told the religious office, JAKIM. The Mother claims that JAKIM then came to the house and wanted to prosecute them because they were LGBT. This occurred, according to the Mother, in mid-March 2018. The Mother also claimed that nobody was home and that their neighbour had informed them that JAKIM had come looking for them. The Mother claimed a second visit from JAKIM at the end of April or early May. She claims that they broke into her mother's house and damaged things. The Mother also claimed that JAKIM officers broke into her house around a week before she came to Australia.
51. The Mother claimed that when JAKIM were looking for her, her mother told her to move away. The Mother claims she moved to her friend’s house in Kuala Lumpur. She claims she travelled alone because her Mother did not want her to take the Daughter with her. When asked why she knew JAKIM had broken in, the Mother claimed that the head JAKIM officer was her previous principal. She further claimed that her friend told me they broke into the house and that her friend who worked in the JAKIM office said to her that they had gone on an operation to do surveillance on people like me. The Mother clarified that this was not a close friend but someone with the feelings and heart to help LGBT people.
52. The Mother's evidence is that she has not had any contact with [Ms A] since she was in Australia.
53. Turning to the Mother's present status, she indicated that she was back in a relationship with her husband at the commencement of the hearing. I asked if she knew when he had come to Australia, and she said she did not because they did not talk much. The Mother claimed that after arriving in Perth, she stayed at an address in [Suburb] for three or four months. Following this, she claims that her friend suggested that they go to [Town] because there are lots of Malaysians in [Town].
54. When asked about how she re-established contact with her husband, she claimed that before the end of the year in 2019, she went to the "blowholes" and met her husband there. It was, the Mother claims, an unexpected and chance encounter. Her evidence was that she did not know where her husband was before this.
55. I asked when she moved in with her husband, and she claimed that was in 2020. I asked whether she could remember the month, and she could not. I asked whether she could remember whether it was Summer or Winter, and she could not remember.

Section 424AA

56. At the hearing, I provided information to the Mother. The information was that her Husband had arrived in Australia in November 2017 and when she arrived in Australia, her Husband was living in [Town 2]. On her arrival in Australia, she travelled to [Town 2] to meet him and they had been living together as a married couple ever since she had arrived in Australia.^[28]
57. I explained that the information was relevant because it may indicate that she had not been truthful in parts of her protection visa application and during parts of her interview. I explained that this might lead me to conclude that she is not telling the truth about her relationship with her husband, that her evidence is not to be believed and that her claims to fear harm are not genuine.
58. I asked whether she understood why the information was relevant, and the Mother said she did not. Again, I explained the information and why it was relevant, on this occasion with both aspects being fully interpreted. The Mother again claimed she did not understand why the information was relevant. In the circumstances, I was satisfied that I had done as much as was reasonably practicable to explain to the Mother why the information was relevant.
59. I advised the Mother that she could ask for additional time to comment on or respond to the information I have just outlined. I also explained that if I considered that she reasonably required additional time to respond, I would adjourn the review. The Mother asked for more time. When I asked why she required more time, the Mother said she did not understand the question. In those circumstances, I asked why more time would assist her if she did not understand what was being asked. The Mother did not respond to that question.
60. The Mother then asked the interpreter whether I "had proof" of the information. I explained to the Mother that I had information and was inviting her to comment on or respond to it.
61. I was not satisfied that the Mother reasonably required more time. In my view, the Mother did understand what the information was and why it was relevant. Moreover, it was clear that the Mother was feigning an inability to understand to avoid responding to the information being put. In my view, the enquiry about whether there was "proof" of the information was evidence of that. Moreover, it could be readily expected that any response to the information would have been available from the Mother’s recollection of her personal experiences in Australia.

Credibility

62. The Mother's credibility is important in the resolution of this application. The information, claims and evidence she has provided are littered with inconsistencies. Other aspects of her evidence are objectively implausible. I do not accept that the Mother is a credible witness or that her evidence is reliable.
32. The delegate was concerned that the Mother's responses to questions about her experiences in Malaysia were "vague and overtly brief".^[29] The delegate also considered that despite being provided multiple opportunities to describe her claimed relationship with [Ms A], the Mother was "unable to provide sufficiently detailed testimony".^[30] The delegate also considered the Mother’s responses about her sexual orientation as "evasive and vague".^[31] The delegate also expressed doubt about the explanations given by the Mother for why she could not provide any evidence about her claimed 14-year relationship with [Ms A].^[32]
64. Having listened to the interview, I share the concerns of the delegate. The Mother's evidence at the hearing did nothing to assuage my concerns. Instead, her evidence served only to reinforce them. Her evidence regarding her relationship with [Ms A] was vague, generalised and superficial. An example was her repeated reference to them 'pouring' out their feelings to each other. However, when pressed to explain those feelings and how they were communicated, the applicant's responses were vague and superficial statements about their being upset by their separate circumstances. No detail was ever given.

Inconsistencies in evidence

34. The Mother's evidence at the hearing was that she has lived at three addresses in Malaysia, besides the hostel and a friend's home in Kuala Lumpur, for about a week. Whilst growing up, she lived at her mother's home. She then moved out with her husband after they were married. After this, she moved back with her mother. Later, she obtained her rental property in the same village as her mother. However, her protection visa application only lists one residential address in Malaysia.^[33] At the interview and the hearing, the Mother made claims about break-ins, by JAKIM, at both her own home and that of her mother.^[34]
66. When asked to explain why she only listed one address, she claimed that the person who assisted her in completing the protection visa application only asked for one address. I do not accept that this is a reasonable explanation. The Mother is responsible for the content and accuracy of her protection visa application. She made various declarations in support of it.

Relationship with husband

35. The Mother's protection visa application was made in September 2018 and described her relationship status as "separated".^[35] She did not claim to be "divorced" despite now having produced what appears to be a divorce certificate.
68. At the hearing, the Mother's evidence was that she met her husband in 2019, and they recommenced living together in late 2020. Against that background, at the interview in July 2021, the Mother:
    36. claimed that she did not know where her estranged husband's whereabouts and that the Daughter had last seen her father in Malaysia in 2017;^[36]
    37. expressly claimed that she and her husband were "separated", but that they remained legally married;^[37]
    38. she does not know where her husband currently lives;^[38]
    39. she and [Ms A] have continued their relationship and are staying loyal to each other;^[39]

(e) did not, at any stage, claim or allude to being in a relationship with, or living with, her husband.

69. When invited to explain these potential inconsistencies, the Mother claimed she could not remember saying those things to the delegate. She later claimed that she was talking about the period before she moved in with her husband, and the delegate misunderstood, potentially because of the interpretation. I do not accept that and consider such a contention unsupported by any persuasive evidence or by listening to the interview. Indeed, her evidence about not knowing where her husband currently lives was given clearly. That answer was simply untrue based on the evidence at the hearing. The Mother knew that he lived with her in [Town 2].

[Social media] photograph

70. The Mother's non-disclosure of her contact with her husband is even more concerning, considering the discussions about the Mother's [Social media] page during the interview.
40. The delegate put to the Mother a [Social media] post that had been posted on the applicant's [Social media] account in March 2020, which appeared to show the Daughter and her father together and also listed the Mother's relationship status as "married".^[40] It might have been expected that, at that time, the Mother would have taken the opportunity to explain what had, she now claims, occurred with her Husband, namely that they had met at the blowholes in 2019 and moved in together in 2020 – even if it was mostly for the benefit of the Daughter as the Mother appears to suggest now.
44. However, the Mother did not do that. Rather, the Mother denied taking the photograph herself.^[41] The Mother claimed that she had asked a friend to take the photograph to try and bring back the initial feelings she had for him, but she could not.^[42] The delegate noted that the Mother did not explain why she had provided inconsistent information about the Daughter's contact with her father.^[43] She then claimed that she "could not remember" the last time she saw her husband, later adding that 'maybe' she saw him after her first year in Australia.^[44]

Other matters

46. At the interview, the Mother claimed that if she returned to Malaysia, she would look to continue her relationship with [Ms A].^[45] She also claimed that if [Ms A] had 'moved on', she would look for a relationship with another female.^[46] She did not make such a claim at the hearing before the Tribunal. Instead, the Mother claimed that the harm she feared was based on what had happened previously with [Ms A].
74. However, in terms of any finding about whether the Mother is a lesbian or a member of the LGBT community, as she claims. It is not unimportant that the Mother claims that she came to Australia to be free from Malaysian culture and attitudes in respect of LGBT issues, yet whilst here has made the voluntary decision to live with her husband and has given no evidence of having pursued relationships with any other person (male, female or trans), other than the claim to remain loyal to [Ms A], a person with whom she has had no contact with for around six years.
75. Another aspect of whether the Mother's evidence has been inconsistent is why her relationship with her husband ended in Malaysia. In the interview, she claimed it was because her husband was attracted to another girl and had cheated on her. At the hearing, she claimed it was because she told him the truth about who she was and about [Ms A].
47. Two further examples of inconsistent evidence can be provided. First, the Mother claimed at the interview that the reporting of her relationship occurred at the end of 2017^[47], whereas at the hearing, she claimed it happened in 2018. Second, The Mother claimed in the interview that she went to live at a “Gay Community House” in Kuala Lumpur for a short time^[48], whereas at the hearing, she claimed that she went to stay "with a friend” and did not refer to the “Gay Community House” at all.

Witness evidence

77. The Mother requested that the Tribunal take evidence from her sister. The Mother did not provide a statement from her sister, only a phone number in Malaysia. The Mother claimed that her sister would give evidence about her relationship with [Ms A].
78. I determined not to take evidence from the Mother's sister. There was also no evidence from the Mother that [Ms A] has socialised with the Mother's family or otherwise. Indeed, on the Mother's case, there was no suggestion that any of her family were aware of the relationship until 2018 when it was reported to JAKIM. In any event, my concerns about the overall credibility and reliability of the Mother's evidence, based on the inconsistent claims she had made about her circumstances here in Australia about her husband, were already such that I did not consider that the evidence of the Mother's sister would be capable of elevating my concerns. It was clear that the Mother had provided false information concerning her circumstances to claim protection. In those circumstances, it would not be difficult to imagine the Mother enlisting her sister to do the same.

Findings

79. I do not accept that the Mother travelled to Australia without knowing her husband's whereabouts. Consistent with her protection visa application, I find that she arrived in Perth and then immediately travelled to [Town 2].
80. The Mother's case is that she travelled to [Town 2], the same location as her estranged husband, which was a coincidence. I reject that. I am satisfied that the Mother travelled from Malaysia to [Town 2] to reunite with her Husband, who had left for Australia eight months earlier. I do not accept that she had separated from her Husband in the relevant sense. I am not prepared to place any weight on the untranslated divorce certificate, even assuming that it is a divorce certificate, because of the inconsistent evidence provided by the Mother, over time, about her relationship status.
81. I do not accept that the Mother was ever in an intimate, romantic, or relevant relationship with [Ms A]. I am prepared to accept that [Ms A] was a friend of the applicant, perhaps even a close friend, but I am not at all satisfied that it was anything more than a friendship.
82. I do not accept that their relationship was 'reported' to [Ms A]'s family, the Mother's family or JAKIM. I do not accept that the Mother's home was targeted or that her mother's home was targeted by JAIKIM or for any reason related to the Mother's actual or perceived sexual orientation. I do not accept that the Mother was fleeing persecution in Malaysia. I do not accept that she was fleeing JAKIM or any other organisation or group of people. I do not accept that the Mother is a member of the LBGTQ+ community or that she would be imputed as being a member of that community.
49. I do not accept that the Mother would pursue a relationship with [Ms A] or another woman if she is returned to Malaysia. I am satisfied that she will continue her relationship with her Husband as she has chosen to do in Australia. I am not satisfied that her decision to do so would be because of any fear of harm^[49] but rather would be a voluntary choice. In that regard, I note that the Mother has been in a country where she is free to pursue a relationship with any person of any gender, and she has chosen a relationship with her former husband. Even if, as the Mother now claims, they resumed their relationship for the Daughter's benefit, I am satisfied that they will continue to be in that relationship for the reasonably foreseeable future. There is no reason to expect that their relationship will end in the reasonably foreseeable future. A combination of the Mother's decision to continue a relationship with her husband and her stated desire that it is for the benefit of the Daughter comfortably satisfies me that the relationship will continue. Even if I assume that the Mother's husband will remain in Australia and not return to Malaysia with her, an issue about which I have no evidence, I do not consider that the Mother will pursue an LGBT relationship in Malaysia or face a real chance of serious harm now or in the reasonably foreseeable future for any reason.
84. I do not accept that the Mother faces a real chance of serious harm from JAKIM or any other organisation, body or person because of her sexual orientation or membership of the LGBT community, or imputed sexual orientation or imputed membership of the LGBT community.

Non-practicing Muslim

85. Despite not being a claim expressly made, I have considered whether the Mother would face serious harm as a non-practising Muslim in Malaysia. I accept that the Mother does not attend a Mosque in Australia.
50. At the interview, the Mother claimed that she considers herself a practising Muslim but is ‘not that strong’. She does not attend a mosque in Australia. In Malaysia, she would participate during school time but would not go on her own time.^[50] The Mother did not claim to fear harm on this basis at either the interview or the Tribunal hearing. I asked the Mother in several different ways whether she feared harm for any reason other than her sexual orientation or LGBT status, and she said no.
52. Country information indicates that liberal Muslims can publicly deviate from strict religious practices without facing serious consequences.^[51] Country information reveals that while non-observance of certain Islamic practices, such as Ramadan, or engaging in activities like drinking alcohol, might lead to social stigma, it does not typically result in serious harm. Muslims are generally not prosecuted for disbelief.^[52]
88. The Mother has not claimed to have experienced past harm in respect of how she practices Islam. In the circumstances, having regard to the country information, the absence of any past harm for faith-related reasons, the lack of any claim of renunciation of Islam, atheism, or apostasy, 53 I am not satisfied that the Mother faces a real chance of serious harm as a result of any non-observance of Islam or prayers or actual or imputed status as a non-practising Muslim.

The Daughter

89. The Daughter did not make any express claims to fear harm on account of her own profile. At the hearing, I sought to explore with the Mother whether the Daughter faced a chance of harm for reasons unique to her. The Mother would make various claims about the Daughter being a girl and facing discrimination. When pressed as to why this would happen to the Daughter, the Mother always brought it back to her claim to "be LGBT" and the risk of harm if something happened to her.
90. I have considered whether the Daughter would face a real chance of serious harm. I am not satisfied that the Daughter would face a real chance of serious harm for any reason, including because of either, or a combination of, her age and sex either now or in the reasonably foreseeable future. I note that the Mother conceded that she was not born out of wedlock. I am not satisfied that even if her parents separated, the Daughter would face a real chance of serious harm as the child of separated parents.

DO THE APPLICANTS MEET THE REFUGEE CRITERION?

91. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.^[53]
92. I am not satisfied that either of the applicants would face a real chance of serious harm, now or in the reasonably foreseeable future, if they were to be returned to Malaysia. I have also considered their claims cumulatively. I do not consider that any of the above claims would, when considered cumulatively with one or more or all of the other claims, lead me to conclude that the applicants, or either of them, have a well-founded fear of persecution.
54. For the above reasons, I am not satisfied that the applicants have a well-founded fear of persecution within the meaning of s 5J(1) of the Act. In those circumstances, it is not necessary for me to determine whether s 5J(2) or (3) apply.^[54]
94. For the reasons above, I am not satisfied that the applicants are refugees within the meaning of s 5H(1) of the Act. On that basis, the applicants do not meet the criterion in s 36(2)(a) of the Act.

DO THE APPLICANTS MEET THE COMPLEMENTARY PROTECTION CRITERION?

55. To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm.^[55]
57. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.^[56] To the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a).^[57]
97. I have already found that the applicants do not face a real chance of serious harm. On that basis, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Malaysia, there is a real risk that they will suffer significant harm. I am not satisfied that the applicants will be exposed to significant harm for any other reason, including in the cumulative consideration of their claims.
98. Whilst I accept that the applicants do not wish to return to Malaysia, I conclude that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. The applicants are not persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
99. For the reasons above, I do not accept that the applicants are owed complementary protection or otherwise meet the complementary protection criterion in s 36(2)(aa) of the Act.

CONCLUSION

100. The applicants are not persons in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa). The applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
101. There is no suggestion that the applicants, or either of them, satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
102. Accordingly, the applicants do not satisfy the criterion in s 36(2). In those circumstances, the decision of the delegate will be affirmed.

DECISION

103. The Tribunal affirms the decision not to grant the applicants a protection visa.

Fraser Robertson
Member

ATTACHMENT – EXTRACT FROM MIGRATION ACT 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

...

5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

...

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a) a characteristic is shared by each member of the group; and

(b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

(i) the characteristic is an innate or immutable characteristic;

(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a) protection against persecution could be provided to the person by:

(i) the relevant State; or

(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a) the person can access the protection; and

(b) the protection is durable; and

(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

...

36 Protection visas – criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

(2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally

^[1] Delegate's decision, p 4.

2. ^[2]Migration Act 1958 (Cth), s 5H(1)(a).
3. ^[3]Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [10]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
4. ^[4]Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
5. ^[5]Migration Act 1958 (Cth), s 5J(4)(c).
6. ^[6] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [10]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
7. ^[7] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [10]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
8. ^[8] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [13]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
9. ^[9] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [14]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
10. ^[10] See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.
11. ^[11] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ).
12. ^[12] See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
13. ^[13] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
14. ^[14] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].
15. ^[15] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
16. ^[16] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, 20210629092134 ('2021 DFAT Report').
17. ^[17] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
18. ^[18] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
19. ^[19] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).
20. ^[20] Protection visa application, p 6.
21. ^[21] Protection visa application, p 6.
22. ^[22] Protection visa application, p 17.
23. ^[23] Protection visa application, p 17.
24. ^[24] Protection visa application, p 17.
25. ^[25] Protection visa application, p 18.
26. ^[26] Delegate's decision, pp 4-6.

^[27] See document provided by the Mother on 8 May 2024.

^[28] See reasons for decision, Tribunal file no. 1808044.

29. ^[29] Delegate's decision, p 6.
30. ^[30] Delegate's decision, p 7.
31. ^[31] Delegate's decision, p 7.
32. ^[32] Delegate's decision, p 7.
33. ^[33] Protection visa application, p 6.
34. ^[34] Delegate's decision, p 5.
35. ^[35] Protection visa application, p 4.
36. ^[36] Delegate's decision, p 4.
37. ^[37] Delegate's decision, p 8.
38. ^[38] Delegate's decision, p 4.
39. ^[39] Delegate's decision, p 5.
40. ^[40] Delegate's decision, p 8.
41. ^[41] Delegate's decision, p 8.
42. ^[42] Delegate's decision, p 8.
43. ^[43] Delegate's decision, p 8.
44. ^[44] Delegate's decision, p 8.
45. ^[45] Delegate's decision, p 6.
46. ^[46] Delegate's decision, p 6.
47. ^[47] Delegate's decision, p 5.

^[48] Delegate’s decision, p 5.

49. ^[49] See Migration Act 1958 (Cth), s 5J(3)(a)-(c).
50. ^[50] Delegate's decision, p 4.
51. ^[51] Foo, Celestine, 'The Woes of Four Non-Practicing Muslims in Malaysia during Ramadan', Yahoo! News, 5 May 2021 <https://malaysia.news.yahoo.com/woes-four-non-practicing-muslims-025747048.html>; Preeti, Jha. 'Losing Faith', New Humanist, 31 March 2020, <https://newhumanist.org.uk/articles/5596/losing-faith>; see also 2021 DFAT Report, [3.65]-[3.76].
52. ^[52] ‘Intolerance Rising: Atheists at Risk in Malaysia’, The Diplomat, 22 August 2017, CXC90406612572; 2021 DFAT Report, [3.75].

^[53] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 at [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).

54. ^[54] ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 at [24]–[25] (Rangiah J).
55. ^[55] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [13]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
56. ^[56] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
57. ^[57] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [27]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.